Our ERISA Lawyers Answer Your Questions
If you are considering filing a disability or life insurance claim or if you have already filed your claim and have been denied or terminated benefits, you may have a number of questions. ERISA (Employee Retirement Income Security Act) claims and litigation are no simple matters. We help our clients seek the benefits and compensation they deserve. To learn more about ERISA cases and your rights, please review the following questions and answers or call an ERISA lawyer 24/7.
Do I need a lawyer to help me appeal the denial of my disability benefits?
No, while you are not required to hire a lawyer to appeal the denial of disability benefits, it is in our best interest to do so. ERISA involves a complex set of laws, which require an in-depth understanding and experience in handling them. An experienced ERISA lawyer can identify the strengths and weaknesses of a case and bring his or her knowledge of the current law to present your claim in the most persuasive way.
Can I file for bankruptcy before or after filing for disability benefits?
Yes, loss of income and high medical expenses are two of the most common factors that force disabled people into bankruptcy. If you have disability benefits or have a disability claim and are forced into bankruptcy, you need to properly list your benefits or claim in your bankruptcy schedules. Here are some important steps to keep in mind:
- If you are currently receiving benefits, you need to list the monthly amount of benefits and the payer (who pays you) in your schedule of assets, besides listing the monthly payment in Schedule I, your current income.
- If your disability benefits have been terminated and you file for bankruptcy (or your benefits are terminated after you file but before discharge), you need to list the contingent claim under Schedule B, paragraph 21, by listing your monthly amount and naming the insurance company and the plan.
- If you do not properly list your present (or contingent) claim in your bankruptcy petition, the insurance company or plan could argue that you are prohibited from suing for benefits, a position upheld by many judges.
At the ERISA Law Center, we unfortunately encounter many prospective clients who have been misadvised by bankruptcy advisers or attorneys that listing your disability payment or claim is unnecessary. They are wrong. You must properly list your benefits or claim to retain it.
How often do disability companies deny claims and appeals?
In our experience, the answers to these questions vary significantly depending on the circumstances. Most companies will pay most obvious claims, such as pregnancy, hospitalization, cancer treatment, etc. Most companies will pay the shortest duration claims – three months, six months, perhaps one year.
However, insurance companies are far less likely to grant claims or appeals under the following conditions:
- When disabilities continue for lengthy periods of time
- When the cause of a disability is not obvious, such as in cases involving fibromyalgia, chronic fatigue syndrome or an autoimmune disease
- When there is no clear diagnosis
- When the primary disabling conditions are symptoms such as pain, fatigue, mental clouding from medications and impaired sleep
· If I have multiple disability policies, doesn’t being granted benefits by one company require that the other company also grant benefits?
· No, insurance companies can certainly be influenced by a claimant’s receipt of benefits from another insurer. If the policies are similar, for instance, an insurance company contemplating denial might reason that a court could be swayed by another company’s decision to grant benefits to the same claimant, but there is generally nothing in disability policies (nor the law) which requires one company to follow another company’s lead in granting benefits.
· What is a “sedentary” job?
· By definition, sedentary work is characterized by sitting and a lack of physical exertion. According to the Dictionary of Occupational Titles (DOT), sedentary work involves “exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs may be defined as sedentary when walking and standing are required only occasionally and all other sedentary criteria are met.”
· Many insurers will deny or terminate your benefits claiming you can do a “sedentary” job. The problem is that this definition only considers the physical requirements of your job although most jobs also include intellectual and cognitive requirements.
· Can my disability insurance company require me to have surgery in order to receive benefits?
· An insurance company cannot directly require you to have any surgery or treatment as a condition to the receipt of benefits. However, most policies contain provisions that require you be under the care of a physician and to keep regular appointments. If your physician strongly recommends a surgery, which might reduce or eradicate your disability and you decline, the insurance company might argue that your election constitutes a failure to follow your doctor’s advice. This might affect your claim.
· Most surgeries do not have guaranteed outcomes. In such cases, the risks may be greater than the hoped-for benefits. In these instances, it is unlikely that a disability company could successfully argue that your claim should be impacted by your refusal to consent to surgery.
· Can I perform volunteer work while I’m disabled?
· It depends on the nature and extent of the work. Insurers and plans tend to perceive “work as work,” whether you’re working for wages or without compensation. For example, if you are a volunteer and are required to appear 2-3 days per week for 3-5 hours, your insurer may terminate your benefits, reasoning that you have demonstrated the ability to work. Additionally, a sustained level of volunteer work can often be inconsistent with either your doctor’s recommendations or your stated “restrictions and limitations.”
Can I sue my ERISA disability insurance company for bad faith and punitive damages?
No, damages for bad faith and punitive damages are not available in an ERISA claim. Benefits controlled by ERISA are limited in court to:
- Receipt of back benefits
- An order for reinstatement
- Attorney’s fees (in some cases)
Assuming the jurisdiction permits it, cases that permit bad faith recovery and punitive damages result from individual policies or those excluded from ERISA, such as governmental or church plans.
If my short-term benefits are terminated or denied, can I appeal or sue?
Yes, short-term benefits, like long-term benefits, can be administratively appealed, and if the appeal is denied, you can sue. However, some short-term benefits are not governed by ERISA but rather are wage continuation or contractual promises made by your employer. Those benefits may be controlled by State Law, not ERISA. If this is the case, the case may still be appealable and you may be able to sue. Therefore, it is critical to use the offices of a qualified ERISA lawyer to identify the character of your short-term benefits.
Does it matter what kind of doctors are treating me, and how frequently, if I am receiving disability benefits?
Most policies require that you receive appropriate care and treatment. It’s important that you have a physician familiar with treating your disabling condition and, if the illness requires it, specialized knowledge of the condition involved. In regard to frequency, you should see your doctor as often as he or she requires but generally no less than once every three months.
Do I continue to receive benefits while my case is on appeal or in litigation?
No, once your benefits have been denied or terminated, payments are terminated.
How long will my disability insurance benefits last?
That is determined by the policy or plan, but most policies or plans provide that a claimant will be paid until age 65 or their normal Social Security retirement age. However, benefits can be terminated at any time. That is why it’s so important to have access to an ERISA attorney even while you’re receiving benefits. A seasoned lawyer can advise you about your rights and the steps you should take to remain on claim.